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A Moment of Reason: On Archbishop Williams’ lecture on jurisprudence

[I thought of doing an longish explanation of the Archbishop’s speech, but in the end I scrapped that post and decided to let his words mostly speak for themselves, with a slightly critical remark at the end]

The Archbishop of Canterbury held an interesting speech on February 7, 2008, which provoked an incredible backlash by the usual islamophobic suspects and many others. People, that’s my guess, largely didn’t read a transcript of the speech or at least listen to the damn thing at least once or twice before lashing out at his alleged endorsement of an introduction of Sharia (read: multiple wives, wivebeating, female genital mutilation, honour killings, ah, you know the drill) into British law.

As always, one should be wary reading such driveling assessments of vaguely pro-Islamic persons. Experience should teach one as much. But, upon reading the transcript, I was really shocked, because the Archbishop’s speech was considerate and thoughtful. Not only did he explain what he meant by Sharia:

something that has to be ‘actualized’, not a ready-made system. If shar’ designates the essence of the revealed Law, sharia is the practice of actualizing and applying it; […] there is no single code that can be identified as ‘the’ sharia

he also explained how in his and other theoreticians’ view, “law” as in “British law” should be understood, and what problems arise in connection with the current interpretation of it: “

If the law of the land takes no account of what might be for certain agents a proper rationale for behaviour […] it fails in a significant way to communicate with someone involved in the legal process (or indeed to receive their communication), and so, on at least one kind of legal theory […], fails in one of its purposes.

This is, in a nutshell, where he’s heading. The law should not exclude whole communities from public communication. There is a disadvantage that these communities have, as far as power or status is concerned, and secular courts, which do not consider some communities’ “rationale for behaviour” will alienate these communities further:

a communal/religious nomos, to borrow Shachar’s vocabulary, has to think through the risks of alienating its people by inflexible or over-restrictive applications of traditional law, and a universalist Enlightenment system has to weigh the possible consequences of ghettoising and effectively disenfranchising a minority, at real cost to overall social cohesion and creativity.

Look close. Here, as everywhere else in the lecture, he tells us that we as a society may have to choose between one and the other. Do we want to have “social cohesion” or do we want to eject these communities from our countries? Because that’s the choice really. A ghettoised minority is likely to become more and more radical. Here in Germany that’s remarkably obvious. Driving these communities out might be, in a few decades, the only choice left. Plus, it’s possible that the imbalance of power and status has had a hand in creating these communities in the first place. We know how these things happen, there are multiple studies showing how communities and images are created and dissolved, one of the most readable accounts being Roediger’s Wages of Whiteness

However, in discussions with friends I usually, at one point or other, hear the word “enlightenment” and the phrase “the law is the law”. That the uncritical use of both these terms can be problematic is adressed by Dr. Williams as well: “

So much of our thinking in the modern world, dominated by European assumptions about universal rights, rests, surely, on the basis that the law is the law; […] so that recognition of corporate identities or, more seriously, of supplementary jurisdictions is simply incoherent if we want to preserve the great political and social advances of Western legality.There is a bit of a risk here in the way we sometimes talk about the universal vision of post-Enlightenment politics. The great protest of the Enlightenment was against authority that appealed only to tradition and refused to justify itself by other criteria […]. The most positive aspect of this moment in our cultural history was its focus on equal levels of accountability for all and equal levels of access for all to legal process. […] But this set of considerations alone is not adequate to deal with the realities of complex societies: […] Where this has been enforced, it has proved a weak vehicle for the life of a society and has often brought violent injustice in its wake.

So far we have only looked at Dr. Williams’ criticism of the jurisprudence as it is practiced and of the ideologies that support said practice. What, we might ask, about the dangers of introducing what he calls “supplementary jurisdiction”? He does see these dangers, especially

the effect of reinforcing […] some of the most repressive or retrograde elements.

He talks amply about the

risks of any model that ends up ‘franchising’ a non-state jurisdiction so as to reinforce its most problematic features and further disadvantage its weakest members.

He makes clear that however this supplementary jurisdiction might look like in practice, it cannot be allowed to become a “communal legal structure which can only be avoided by deciding to leave the community altogether”. The fact that he emphasizes what he calls “ground rules”, together with the fact that he continually speaks rather vaguely of the practicality of his propositions (“if”, “appears”, “seems”, see also the log’s take on this), may mean that the system he envisions may never see the light of day.

However, the practicality of Dr. Williams’ proposals presupposes the universal principle that he, by the way, explains thusly:

‘human dignity as such’ – a non-negotiable assumption that each agent (with his or her historical and social affiliations) could be expected to have a voice in the shaping of some common project for the well-being and order of a human group.

This presupposition hasn’t gone unnoticed by the Archbishop who goes on to write ”

if my analysis is right, the sort of foundation I have sketched for a universal principle of legal right requires both a certain valuation of the human as such and a conviction that the human subject is always endowed with some degree of freedom over against any and every actual system of human social life.

(something which I would deny emphatically), and concludes this thought by saying that

both of these things are historically rooted in Christian theology.

Indeed, indeed it is. It is fundamentally dishonest of muslim-bashing commentators to praise the judeochristian tradition and denounce the bishop because of his alleged break with it, when all he does is abide most closely by exactly that tradition.

Personally, I believe that this is exactly where his theory goes wrong. I think that, by giving communities as ideologically bound as religious communities usually are, the “freedom” to adhere to their religious/cultural principles, by giving them the freedom of choice, you take away or deny them the freedom to adhere to secular laws, especially the weaker parts of the community. I believe that a religious culture is like a dangerous trap. An insignificant example is Bavaria in Germany, where, even after the German supreme court has ordered the state to take down the crosses in classrooms if even a single student complains, few crosses have been taken down, because even those who feel uncomfortable are pressured into silence. And this is a small, small example. Nobody gets hurt. Can the government run the risk of intoducing legislation that leads to even a single person being severely disadvantaged just because he or she is caught in the religious trap? And we don’t even have to imply pressure from the community. Far from being in “a conscious relation with God”, as Dr. Williams asserts, devout people, in any religion, are, well, devout, which means that they are, as Merriam-Webster’s has it “ardently dedicated and loyal”. There is room for freedom there but not enough, possibly, to justify such a legislation.

Excuse me for indulging in my dislike for religion. That was highly polemic and even wrong. For one thing, secular ideologies don’t leave their own devout followers more wriggle room, as the maddening attacks on Dr. Williams (or Richard Dawkins’ or Christopher Hitchens’ recent writings, for that matter) demonstrated many times over. Second, in view of the fact that I approve of Dr. Williams’ analysis of the problem, my approach was not very constructive. He says, correctly, that “

the important springs of moral vision in a society will be in those areas which a systematic abstract universalism regards as ‘private’ – in religion […], but also in custom and habit.

No, I am with Nagel and his socks, I don’t think that being religious and being moral is correlated. But the fact remains that moral vision emerges from that which is private, and we as a society cannot afford to shut out sizable minorities and their private lives. The fact that religion plays a vastly more important role in these communities is something that we have to come to terms with. IF we want a harmonious society. If we want disadvantaged minorities to be given a voice. For as long as we silently suppose law to “of course” be just for everybody, we are effectively silencing those communities who have cultural loyalties which sometimes clash with their loyalties as citizens.

Coming to terms with that does not mean introducing “special legislation”. But these minorities are already seeking religious advice. Why not incorporate that into the practice of law we have. It is a dangerous and tough task but a necessary one. Turning away from these communities and denouncing them as a whole is not helpful, nor is turning away from them in a gesture of tolerance. As Dr. Williams said:

It is always easy to take refuge in some form of positivism

and indeed it is, especially so-called sceptics can be found in hiding whenever asked to engage with religion. Supplementary jurisdiction might not be the best way to solve our problems (if it is not, the Archbishop himself provides the reasons why it may not be, this cannot be stressed enough, as he tells us what the precondition to such a solution would be.) , but solve them we must. And we must be thankful for the likes of Dr. Williams for pointing them out the way he did.